Yellow Cab, an owner-operated Vancouver-based taxi company, hired Shawn Bowden as general manager of daily operations. Accountable to an annually elected board, Bowden had to navigate the fractious politics of the business with its various personal rivalries.

Summoned to a meeting of the board, he was warned by one director he would soon learn how things were done. Although the agenda was to allow him to explain the decisions he made that were under review, the session was punctuated by acrimonious and heated exchanges, culminating in repeated accusations Bowden was lying. Bowden was unceremoniously dismissed by the directors from the meeting without being given the opportunity to explain his answers.

Bowden attempted to to resume his duties, but was emotionally unable to do so and obtained support for medical leave. He also began treatment for post-traumatic stress disorder (PTSD) flowing from his treatment at the meeting, but did not inform his employer. Instead he told a director he would not communicate with any board member until he was assured of a safe and respectful environment and was prepared to work from home in the interim.

The board rejected his request to work from home, explaining that the business required personal contact. It directed Bowden to appear at another meeting. When he failed to do so, it treated his employment as abandoned. Bowden responded with a human rights complaint accusing the company of discriminating against him on the grounds of mental disability.

The British Columbia Human Rights Tribunal dismissed the employer's argument that it had never been informed of the details of any medical condition, determining that it did not relieve Yellow Cab of its duty to inquire after his well-being. Once the employer was aware of a medical condition, it had reason to suspect it was the cause of his absence. Yellow Cab's failure to inquire resulted in a finding of discrimination and a substantial damages award in Bowden's favour.

As appealing as it is to save on severance and treat absent employees as having resigned, employers should pause and engage in the following analysis:

- Has there been any unusual behaviour on the part of the employee? In Bowden's case, the employer testified it had observed what it perceived as erratic behaviour on the part of its general manager. That should have set off alarms.

- Has there been any conflict or incident that preceded the absence and may have precipitated a medical condition?

- Was there any medical information provided? Once an employee has supplied a medical note, the employer should defer any decision pending further details.

- Avoid playing doctor. Courts rely on medical assessments to determine disability. If you have evidence that refutes the medical evaluation, draw it to the immediate attention of the treating physician or conduct an independent medical examination. Do not delay in seeking an independent medical examination. In Bowden's case, a contrary medical opinion was rejected in part because it was based on an examination done a year after the incident.

- Seek confirmation of abandonment. Has the employee communicated to other staff that they are not returning or quitting? What position do they take with you?

— Howard Levitt is senior partner of Levitt LLP, (levittllp.ca) employment and labour lawyers. He practises in eight provinces and is author of The Law of Hiring in Canada, soon to be released.

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